The Individual Mandate: Not a Slippery Slope

If we needed any more proof that there's a conservative consensus that the individual mandate -- the provision of the Affordable Care Act (ACA) that levies a tax on anyone without health care -- is an unprecedented affront to both the Constitution and individual freedom, we got it at Conservative Political Action Conference (CPAC) over the weekend. Former Minnesota governor Tim Pawlenty and other keynote speakers used it to go after not only Obama, but also at 2012 GOP frontrunner Mitt Romney, who in 2006 signed a health-care law with a similar provision as its centerpiece in Massachusetts.

The individual mandate did, of course, start out as a conservative policy innovation. But since arguing the mandate is itself a terrifying expansion of government power is a bit of a stretch, the ACA's opponents have turned to "slippery slope" arguments. What supporters of the mandate don't understand, charges Charles Lane of the Washington Post, "is that the threat to liberty, if any, comes not so much from the individual mandate itself, but from the other things Congress might do if it gets away with claiming authority for this measure under the commerce clause." In his recent decision holding the ACA unconstitutional, Judge Roger Vinson echoed an increasingly prominent Tea Party meme: If the mandate is upheld, "Congress could require that people buy and consume broccoli at regular intervals."

But there are many things preventing us from broccoli tyranny; the slope is actually not so slippery. The contention that upholding the ACA would allow the federal government to regulate everything hinges on the supposed distinction between regulating economic "activity" and "inactivity"; with the ACA, some conservatives claim, it is not having health insurance that's being regulated -- and the commerce clause only authorizes regulating economic activity. Of course this distinction proves essentially meaningless once you realize that not buying health insurance now means paying out of pocket later. Combined with the fact that states generally require hospitals to treat the uninsured in the case of emergency, to say that the uninsured are making a "free choice" is highly misleading. It's government regulation that makes these choices possible in the first place.

But the distinction is irrelevant anyway. Whether "activity" or "inactivity" is involved, the Court has well-established standards on what the commerce clause authorizes. Generally, the problem being addressed plausibly requires a federal solution, and the proposed regulation -- even if it does not itself regulate interstate commerce -- is part of a larger regulatory scheme.

As Yale law professor Jack Balkin explains in a recent article, the individual mandate -- whether it regulates "activity" or not -- clearly meets this existing standard. Widespread problems with access to health care and skyrocketing costs are certainly big enough to plausibly require a federal solution. Furthermore, the individual mandate is an essential component of the ACA's broad regulatory framework. Americans are generally okay with barring insurance providers from discriminating against people with "pre-existing conditions," but this creates a "free rider" problem. Without the individual mandate, people could game the system by buying insurance only once they are sick, which of course would affect the whole country, not to mention bring down the entire insurance industry in the process. Judge Vinson inadvertently conceded how important the mandate was to the regulatory scheme when he determined it was so essential to the ACA that it could not be "severed" from the rest of the legislation and ruled the whole thing unconstitutional. What he failed to realize was that this made his argument that the mandate didn't constitute a regulation of interstate commerce nonsensical.. The fact that the mandate is an essential part of a federal regulatory scheme just underscores why the federal government has not exceeded its authority under existing law.

Upholding the ACA would also not mean that any conceivable federal law would be authorized by the commerce clause. As Balkin points out, finding the ACA constitutional would not be inconsistent with the outcome of the landmark 1995 commerce clause case U.S. v. Lopez, in which the Court struck down a federal gun-control law that was not part of a broader regulatory scheme, and did not address a problem that required a federal solution. As Adam Serwer wrote, the "necessary and proper" component of the commerce clause is important -- the law has to provide a necessary market regulation that is proper for the federal government to address.

But let's just say, for the sake of argument, that the ACA represents a significant expansion of federal power rather than a straightforward extension of longstanding commerce-clause precedent. Striking down the mandate would not prevent any of the parade of horribles Lane and other critics have invoked. Congress could pursue the same ends using its taxing and spending powers. (Indeed, the entire case against the mandate hinges on the highly dubious proposition that taxing people who do not have and choose not to purchase insurance is a "penalty" rather than a tax.) So, while striking down the ACA would be a devastating blow to people who lack health insurance, it would not be a significant obstacle to the mythical future Congress that wants to force people to eat their green veggies.

But the most important problem with this argument is that it proves too much. If the federal government cannot be permitted any power it might potentially abuse, there would be nothing left. Utterly uncontroversial powers that are explicitly stated in the Constitution give the federal government the authority to pursue policies that would be far more foolish and destructive than even the dreaded broccoli mandate. Congress could, for example, declare war on Canada, or the president could use nuclear weapons to pulverize the entire European Union. The idiocy and gross immorality of such policies doesn't mean that Congress's power to declare war or the president's status of commander-in-chief of the military should be written out of the Constitution.

And the same goes for the power that Congress has to regulate interstate commerce. Ultimately, the best check against unwise legislation is politics. As the Constitutional was being deliberated, James Madison didn't believe that the specific powers of the federal government should be limited in advance -- not because he didn't believe in limited government, but because he felt that the multiple veto points within the federal government provided a more than adequate check on federal power. The fact that upholding the ACA might permit Congress to do something foolish down the road is neither here nor there -- the same is true of any government power. Arguments that the ACA is unconstitutional have to stand or fall on their own merits -- and the merits of the anti-ACA argument are ultimately weak.

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